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Judgment
Balakrishna Ayyar, J.—The plaintiff in O. S. Nos. 10 and 11 of 1949 on the file of the Sub-Court, West Tanjore, is the petitioner in both
these cases. The question for determination in both these petitions is the same and therefore they may be dealt with together.
The plaintiff is a Muslim lady. Two of her sons, Mohamed Ismail and Mohamed Ibrahim, died some time before the suits were filed. She sued
for partition of her one-sixth share in the properties of her deceased sons. On 4-1-1946, two documents had come into existence, under which for
a consideration expressed in those documents to be Rs. 5000 the plaintiff released her rights in the properties of her sons in favour of some of the
defendants in the suits. It is obvious that if these documents are valid and binding on the plaintiff her suits must fail. The plaintiff''s case in respect of
these release deed is set out in paras. 4 to 7 of the plaint. Therein the plaintiff alleged that her son, Abdul Aziz, took her mark in two documents, of
the contents of which she was apprised. Abdul Aziz told her that some documents were required, in order that she might not be put to the
inconvenience of attending public offices and Courts in connection with the management of the estate of her deceased sons--the suggestion thus far
being, apparently that she was executing some power-of-attorney. But actually undue advantage was taken of the possession of these documents
and the alleged release deed brought into existence. Thus far the case of the plaintiff would be a simple one and in substance to the effect that these
documents were really forged ones. u/s 464, Penal Code, a person is said to make a false document who dishonestly or fraudulently causes any
person to execute a document, knowing that such person by reason of deception practised upon him does not know the contents of the document.
Whether we read the averments of the plaintiff as amounting to an allegation that her mark was taken to blank pieces of paper, on which these
release deeda were subsequently engrossed, or, whether her mark was taken to documents already written up, she being told that they were some
other kind of document in either case, the documents would be void, and the plaintiff would be entitled to ignore them and ask for partition. In the
plaint, however, there are certain other allegations which suggest that the case of the plaintiff is not merely one of fraud making the documents void
but something more or something in the alternative. The allegations in this regard are not all set out consecutively being spread over a number of
paragaphs; but, when read together, they do definitely suggest that the plaintiff was putting forward an additional or alternative case, namely, that
the documents were vitiated by undue influence and that, therefore, they are voidable. Thus in para. 4 we find:
The plaintiff now understands that he had taken wndue advantage of it and practised undue influence and fraud and brought about the alleged
release deeds . . .
Again, in para. 5 :
The plaintiff is a purdanashin woman unable to read or write or even sign her name. She was very old and advanced in age, being 75 years old at
that time . . . She had no independent advice. She was then immersed in grief at the death of her two sons above-named-in quick succession and
consequently she was in a very weak state of mind and health . . . She was not a free agent in the alleged execution of the documents above
referred to ...
Finally in para. 7 :
The plaintiff submits that the said deed was really not executed by her or with her free consent and knowledge and that ib had been obtained from
her by misrepresentation and fraud, and is of no effect.
The language used is reminiscent of and was very probably suggested by several decisions of the Judicial Committee and would have been wholly
out of place unless at the back of the plaintiff''s mind there was the intention to put forward an alternative case, of undue influence. If a document is
impeached on the ground of undue influence, it would be not wholly void, but only voidable, and the plaintiff, before she can get rid of it, must pay
the appropriate court-fee for its cancellation.
This makes it necessary for me to refer to some of the other points raised by Mr. Jagadisa Aiyar. In these two ""release deeds,"" it was alleged
that the plaintiff had received a sum of Rs. 5000 for giving up her rights in the properties of her sons. We must therefore, argued Mr. Jagadisa
Aiyar, read these documents as ''securing'' a sum of Rs. 5000 to the plaintiff within the meaning of Section 7(iv-a), Court-fees Act. He sought to
reinforce this argument by way of analogy to a vendor''s lien for unpaid purchase money. A sale-deed may recite that a certain consideration had
been received. If, nevertheless, it is established that no consideration was actually paid, it will be open to the vendor to enforce his (vendor''s) lien.
In that light, a sale-deed can be treated as ''securing'' the sale price to the vendor; similarly, the release deeds in this particular case may be treated
as ''securing'' a sum of Rs. 5000 to the plaintiff. I do not consider that the reasoning of Mr. Jagadisa Aiyar is sound. What are called release deeds
in this case do not ''secure'' the sum of Rs. 5000 in any sense in which that word is understood. There is a recital in the deeds that the money had
been received. The recital may be true, or it may be false; but that recital does not ''secure'' any money to the plaintiff. Nor does the analogy of a
lien for unpaid purchase money really apply. That lien is conferred by statute and does not flow from the document.
The second argument of Mr. Jagadia''a Aiyar is that Section 7(iv-a) would apply only where a person is a party to a document and that when
the allegation is that he had been really deceived into affixing his signature to the document, he cannot be really treated as a party to the document
and that therefore he is not bound to seek it to be set aside. He referred to the decision in Raja Singh and Others Vs. Chaichoo Singh, where it is
pointed out that there is no real execution of a document unless the mind goes with the hand that affixed the signature. In other words, before a
document can be said to have been executed, it is not sufficient to show that a particular person affixed his signature. It must also appear that he
signed it, knowing that he was signing that particular document and intending to do so. In the present case, according to the allegations in the
plaints, it would not be right to aay that the plaintiff put her mark to these documents, knowing them to be release deeds. In this view of the matter,
argued Mr. Jagadisa Aiyar, she cannot be asked to pay court-fee for its cancellation. This argument would have been sound, if the allegations in
the plaint had been confined to the plea of fraud and deception making the plea in effect a plea that the documents were forgeries. But, as already
stated, there is an alternative case set out in the plaint, namely, that the document is voidable.
The last argument of Mr. Jagadisa Aiyar amounts to this. The documents purported to be release deeds and it would not be right to treat them
as documents ''securing'' property, having a money value, so as to make applicable sub-para. 2 of Section 7(iv-a) which provides that the value for
purposes of court-fee shall be deemed to be the value of the property in respect of which the document was executed. It is true, as has been
pointed out in earlier cases, that the phrase ""documents securing money or other property having such value"" is not a happy one. But it ia clear that
thia phrase has been held to include sales and also release deeds : see Sodemma v. Krishnamurti A. I. R. 1938 Mad. 824: 181 I. C. 431 where
the learned Judge states aa follows :
It seems to me that the document which is sought to be set aside must of itself have secured the property, that is, there must have been a
conveyance of the said property or a release of rights thereunder which would operate as an extinguishment of the right of the person conveying or
releasing.
It is now too late to seek to alter the meaning in which that phraae has so far been understood.
In the result, both the civil revision petitions are dismissed (with costs (one set) in C. R. P. No. 1306 of 1949 only).
Time for the payment of court-fee : 2. months from the date of the receipt of records.